ADJUDICATION OFFICER DECISION/RECOMMENDATION
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 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).
Summary of Complainant’s Case:
1. 1 The submission specifically relates to the claimant, unnecessarily and unfairly receiving a final written warning by the respondent - for alleged unlawful industrial action and absence without leave, the basis for which Mandate argues was flawed and therefore fundamentally unfair when all the circumstances of the case are considered.
1.2 The case is lodged for due hearing as per Section 13 of the Industrial Relations Act 1969.
1.3 Currently there are approximately 80 Mandate members employed in a number of locations who have been accused of similar allegations, the majority of whom at time of writing have also been issued with final written warnings. Similarly a number of these cases have and are being processed through the Adjudication Officers’ offices, and to date to the best of my knowledge one has been appealed to and heard by the Labour Court.
1.4 The alleged misbehaviours are in relation to a Company/Union dispute in 2017.
2. 1 The claimant started employment as a General Sales Assistant with the respondent’s X outlet
on the 22nd September 1986. She is employed on a full-time basis of 39 hours/week but has 3 rostered late night hours per week which are paid at the overtime rate of double time. Her current rate of pay is €14.31/hour. In line with good industrial relations this rate would normally have attracted the 4 concurrent pay increases unilaterally offered and implemented by the respondent for all staff bar the claimant and many of her long serving colleagues. This would amount to a further compound 8% pay increase on top of the stated rate. For the last 24 years she has been working in the respondent’s X outlet’s cash office – a position that clearly carries with it untold responsibility suitable only to those employees with a proven record of accuracy, accountability, honesty and above all else, discipline to processes and procedures, etc. which are regularly audited and tested.
The claimant has as per the above information considerable service length and heretofore has had no blemishes on her personnel records in respect of performance sanctions, etc. On her behalf I feel it is only fair to say that the claimant has given exemplary service to the respondent and its predecessor which has in no small measure handsomely contributed to her employer’s business and local reputation within X and its environs. The claimant alongside her colleagues employed prior to 1996 are what is known as the pre’96 contract staff.
2. 2 The claimants employment remained relatively uneventful until on or about 25th January 2016 when the respondent announced that it was moving all employees who were employed prior to 1996 (approx. 1000 workers) to a new "modern contract". This initial notice set a very ambitious deadline of the 18th April 2016 for the completion of this exercise, after which time the respondent intimated that they would unilaterally impose the aforesaid changes.
2.3 The consequences of such new "modern contracts" would have resulted in an extremely significant reduction in value terms to the long established terms and conditions enjoyed by the members in question including the claimant.
2.4 The claimant who is a member of Mandate Trade Union has long established terms and conditions of employment that are covered by a series of comprehensive collective agreements and submit that her terms & conditions can only be changed by collective agreement which is laid out in the Respondent/Mandate procedural "Working Through Partnership 2004 ", and/or by her agreement.
2.5 From the outset the respondent stated that if agreement could not be reached the changes would be unilaterally introduced. This approach was totally at variance to how the parties had conducted industrial relations for over 30 years and this contention is supported through the existence of a vast number of collective agreements which the parties had concluded up to this point.
2.6 Notwithstanding the onerous task at hand, Mandate earnestly engaged with management, endeavouring to reach a negotiated outcome on the aforementioned issues. However it was abundantly clear from the start of direct engagement with the respondent that their adopted approach was extremely hostile and significantly different to previous occasions.
2.7 Throughout engagements on both the 10th and 19th February 2016 the respondent constantly repeated the mantra that the new "modern contract" would be implemented from April of that year, with or without agreement. Not surprisingly there was no resolution arising from the local engagement.
2.8 The Pre 1996 dispute was referred to the WRC and a conciliation conference was held on 21st March 2016. The respondent from the outset adopted the same restrictive style of engagement, and refused to provide any financial data justifying the need for their desired changes. The respondent again reiterated its intention to impose the changes on the 18th April 2016 with or without agreement. Arising from the behaviour of the respondent, Mandate requested to have the matter referred to
the Labour Court under Section 26 (1) in accordance with the agreed procedures. In essence the company failed to agree to attend.
2.9 On 14th April 2016 the Claimants and their Union received a formal notification under Section 10 of Protection of Employment Act 1977-2014 outlining the details of the respondent's position regarding the changes being sought in respect of the Pre-1996 contract holders. The choice presented in this correspondence was either a move to a "modern contract" with compensation for loss of earnings or a voluntary redundancy package.
2.10 Arising from the lack of real engagement and the imminent threat of change to terms and conditions without agreement, Mandate initiated a protective ballot for industrial action amongst the Pre- 1996 contract group of workers. The outcome of this ballot was overwhelmingly in support of industrial action and this was formally notified to the respondent on the 15th April 2016.
2.11 Mandate served notice of industrial action stating that its members would engage in strike action from the 16th May 2016. Following an invitation by the WRC the strike was suspended on the evening it was due to take place and the parties engaged in intensive discussions.
2.12 In total the parties were also before the WRC in 2016 on the 18th May, 23rd May, 27th May, 31st May, 9th June, 20th June, 25th July, and the 2nd August.
2.13 In an effort to bring a resolution the WRC issued proposals dated 2nd August 2016 which were subsequently rejected by the Pre 1996 members by way of a secret ballot typical of most Union procedures in such circumstances.
2.14 Mandate, in accordance with agreed procedures, referred the issue to the Labour Court for determination. The Court issued its findings LCR21340 dated November 21st 2016.
2.15 On the 10th January 2017 at a general meeting and secret ballot of Mandate members employed on Pre 96 contracts, the contents of the Labour Court recommendation were rejected.
2.16 At the aforementioned meeting it was also agreed that in the event the respondent chose to implement the recommendation without our members' consent, Mandate would immediately move to a ballot of Pre 96 members for industrial action.
2.17 Despite being put on notice of this, the respondent continued on a regular basis to issue the threat to make these changes without agreement. Notwithstanding numerous requests from the claimant’s trade union to the respondent to desist from this behaviour they refused to comply. Based on this refusal, another secret ballot for industrial action was conducted at a meeting on the 29th January 2017.
2.18 The result of the ballot was overwhelmingly in favour of engaging in industrial action. Resulting from the outcome of the ballot, strike notice was served on the respondent on 6th February 2017
2.19. Prior to our members partaking in industrial action local management in their respective stores were kept fully informed by our members of their intention to partake in lawful industrial action.
2.20. Industrial action commenced on Tuesday the 14th February 2017. Accordingly the claimant participated in lawful picketing in the Y Store on dates between February 14th and February 24th 2017.
2.21 Following an invitation from the Labour Court to both the claimants' Union Mandate and the respondent, an agreement was reached to suspend the industrial action and accordingly a notice suspending industrial action was issued by Mandate Trade Union on the 24th February 2017.
2.22 Further correspondence was received from the Labour Court dated 3rd March 2017.
2.23 It was clearly outlined in this suspension of picketing document that there would be "no victimisation" as a result of partaking in industrial action and that an orderly return to work would ensue.
2.24 For the purpose of clarity and for the avoidance of any doubt as to what was agreed between the parties at the Labour Court on 24th February, a small delegation of the respondent’s and Mandate’s personnel met in separate and joint sessions with the Labour Court throughout the evening of the 24th February 2017. The issue of an orderly return to work was the last issue to be agreed. The claimant’s representative set out an account of the exchanges that took place in side session and at the Labour Court on the orderly return to work arrangements.
2.25 The aforementioned return to work document which the union intended to send to its members was then completed on the night, it was shown to the Labour Court which in turn showed it to the company. 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 on that evening.
2.26 It is contended that the Mandate General Secretary, subsequently on that night spoke to the Respondent’s Director, who gave assurances that the spirit and intent of the return to work document would be upheld and Mandate gave similar assurances. The Labour Court Chair can confirm that this account was captured in the official minutes from the session.
2.27 The claimant returned to work and together with approximately 80 colleagues from across the country the claimant was subjected to a disciplinary process which led to her being issued with a final written warning. The claimant was summoned to investigatory meetings for alleged participation in unlawful industrial action and for allegedly being absent without leave.
2.28 Mandate wrote to the respondent within the agreed timeframe appealing the decisions. The timeframe for appeal hearings/outcomes are outlined in the procedural agreement. It is very obvious that the respondent were unwilling to process the claimant’s disciplinary process in line with the stated agreed procedures because of the fact the respondent wanted the Labour Court to hear ahead of this process their appeal of a Rights Commissioner Decision – R-144679-Ir-14/EOS dated the 25th January 2015. The Rights Commissioner decision found that the claimant’s then disciplinary sanction – which was a final written warning – was ‘disproportionate and unfair. The claimant has already suffered by virtue of the suspension imposed upon her. In all of the circumstances I recommend in full and final settlement of this dispute that the Final Written Warning be withdrawn and expunged from her record’. Please note that the claimant’s suspension regards the process that led to this disciplinary sanction was close on 4/6 months!
A Labour Court hearing to hear the respondent’s appeal of this decision was held on the 10th October 2017 at which it was evidently clear that despite the fact that the respondent’s own disciplinary procedures provide that such a sanction can only remain on an individual’s record for a maximum of 12 months, the respondent wanted to reference the same in line with the disciplinary procedure they intended to exercise against the claimant at the time before, during and after the Labour Court appeal. The Labour Court recommendation was dated the 1st November 2017. It is our contention that the respondent deliberately and unnecessarily prolonged the appeal process which took from initial date of allegation to completion of appeal an unacceptable approximate total of 10/11 months. This is very clearly a case of justice delayed, justice denied.
2.29 Upon conclusion of the internal appeals process, the sanction issued by the respondent was upheld and the final written warning remains in place for 12 months from the date of issue.
3.1 In an effort to provide some broader context it is contended by Mandate that the respondent has in place a well-resourced medium to long term plan to purposefully disengage in normal and orderly industrial relations therefore marginalising Mandate Trade Union to the point of de-recognition. This assertion should not be dismissed as some form of groundless post dispute Union propaganda. Mandate believe that there is wholly sufficient and credible evidence that a project designed to achieve such an outcome, "Project Black", is very much real. It is our absolute contention that the divisive pre 1996 contract dispute was deliberately constructed and used as the launch pad for this hostile and deeply worrying development.
3.2 During the course of 2017 events took place that resulted in unjustified attacks on our members by the respondent, specifically in the present case(s). These attacks on our members were unprecedented and unwarranted.
3.3 It is submitted that suggestion by the respondent that these members participated in unlawful industrial action and were absent without leave was part of a centrally coordinated campaign by the employer in an effort to intimidate and punish members of Mandate Trade Union who in good faith did no more than participate in a lawful Trade Dispute in defence of their terms & conditions of employment. The latter has been recognised by a previous Adjudication Officer decisions particular to 10 like for like cases of the claimant’s workplace colleagues. In the same the Adjudication Officer determined that it was within his remit to determine whether those claimants’ behaviours were unlawful, but that the respondent had a responsibility to process this allegation through the courts and seek possible injunction against the Union. He further proposes that the respondent’s attentions in this regard should have been directed at the Union and not individual and/or groups of low paid workers who were laid to believe by their Union hierarchy that they were engaging in a lawful dispute.
3.4 The respondent's treatment of these staff can only be viewed as a crude method of deterring other Mandate members from engaging in a lawful dispute in the future. There is no doubt that the respondent has sought to make an example of the claimant and her colleagues as part of their broader agenda to de-recognise Mandate Trade Union.
3.5 The respondent failed to provide the claimant with supporting documentation regarding the very serious allegations. It is also submitted that the investigating/disciplinary manager was not in possession of all of the evidence necessary to reach his respective conclusions. It is common case that the aforesaid was not provided with a copy of the strike notice served on the respondent dated 6th February or indeed the return to work protocol which was agreed at the Labour Court.
3.6 In this regard the claimant had at the very least the right to be informed of the charge against her and be given adequate notice of an enquiry, to be given an oral hearing, and to see and challenge all the evidence. In Gearon v Dunnes Stores Limited UD 367  the Tribunal held that fair procedures had not been followed and concluded:
“The right to defend herself and have her arguments and submissions listened to and evaluated by the Respondent in relation to the threat to her employment is a right of the Claimant and is not the gift of the Respondent or this Tribunal ... the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive its breach".
3.7 Furthermore, Mandate contends the warning as issued is flawed in that the investigating and disciplining officer and the appeal officer were not suitably qualified to investigate the complex legal application of the Industrial Relations Act 1990, more specifically that surrounding industrial disputes.
3.8 Perhaps most fundamentally of all, the respondent’s investigation manager also acted as a disciplinary officer. Not only is this a denial of the claimants' rights to natural justice and fair procedure, but it is in fact a clear breach of Tesco Irelands own policy which states as follows;
“To ensure fairness the disciplinary officer must not have been a witness to the complaint or have been the investigating officer".
3.9 In considering a similar matter in JOSEPH BRENNAN BAKERIES v GRAHAM ROGERS
UD/17/160 the Labour Court held that:
"the Court considers that the multiplicity of roles undertaken by TG in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw that procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure. "
4. Legal Argument
4.1 Section 11 of the Industrial Relations Act, 1990 sets out the provisions relating to Peaceful Picketing, subsection (1) states;
‘’It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working. "
4.2. It is an incontrovertible fact the claimant was acting on behalf of a Trade Union in furtherance of a trade dispute and therefore in compliance with sections 10, 11 and 12 of the aforementioned act.
4.3 Section 11 also dispels the respondent's assertion that the Claimant was not entitled to picket another store other than the one in which they work. The focus of Section 11 is not on where the picketers work but on where their employer carries on business. Picketers are thus quite entitled to attend at a place where they do not work provided that it is a place where their employer works or carries on business, which is clearly the case in this instance and has been the case in numerous official industrial disputes not necessarily involving the respondent.
4.4 On Sunday 29th January 2017 the claimant took part in a ballot for industrial action, the outcome of which favoured engaging in industrial action in selected stores nationally, the ballot paper stated the following:-
Issue: Changes to Pre 1996 Terms and Conditions of Employment
Locations: In Selected Stores Nationally
Are you in favour of or against engaging in Industrial Action, up to and including all out strike, in response to your employers stated intention to change your terms and conditions of employment without your agreement?
The foregoing ballot unequivocally complies with the requirements as laid down by section 14 of the aforesaid Act and is in accordance with the rules of Mandate Trade Union. Furthermore the ballot paper clearly outlines that Industrial Action, up to and including all out strike would take place in selected stores nationally if the members supported such a proposition. In the case of the Claimant this is precisely what ensued.
4.5 Whilst it appears the respondent may argue that there was ambiguity vis-a-vis the serving of strike notice, it is contended that this is inconsequential and the Claimant seeks to rely on the test contained in P Elliot & Co v BATU which Dark J. outlined as follows;
'The test was whether a reasonable member of the trade union concerned would know what they were voting for or against. The text should not be parsed or analysed as if it were a formal legal instrument. "
Furthermore, the policy of the 1990 Act was that the managing body of a trade union should retain control over the precise way in which industrial action is pursued. Therefore, it was wholly consistent with the 1990 Act that the trade union should seek authority from its members to engage in a range of industrial action, leaving it up to the managing body of the union to determine precisely what action should be carried out from time to time provided that the industrial action actually taken can be said to be fairly within the parameters of that authorised by the ballot. It is abundantly clear that in the present instance that the claimant was acting on behalf of her trade union in furtherance of a trade dispute and engaged in industrial action in a "selected location" which was determined by her Union's management body, fairly within the parameters of that authorised by the ballot in which she and others participated.
4.6 Even if one were to ignore the foregoing, the respondent, if it had any concerns vis-a-vis the validity of the industrial action carried out by the claimant, could have as previously stated sought injunctive relief. It is respectively submitted that the reason the respondent did not institute such injunctive relief proceedings was that they would not have been in a position to establish a prima facie entitlement to an interlocutory injunction as there would not have been a fair question to be decided in the court.
4.7 Without prejudice to the foregoing it is submitted the proposition that the claimant was somehow personally responsible for the validity of the strike notice is absurd in the extreme, in deciding a similar matter in Nolan Transport Ltd v Halligan  ELR 177 Barren J concluded;
"While the irregularities may have been a matter for the union it was held that the union did not lose immunity from actions in tort conferred by section 13 since that immunity is not made conditional upon a secret ballot, and the individual defendants, who were engaged in the picketing, could not be held liable for irregularities in the ballot carried out by the trade union"
4.8 In the investigation outcome the respondent also adjudged that the claimant was absent without leave which they alleged amounted to a breach of their absence policy. This allegation can be dealt with by both legal and practical examination.
4.9 At a practical level Mandate contends that the warning as issued is flawed in that the respondent’s Investigating Officer, Manager A, was a key and material witness in the proceedings. In his role as Manager A, he and another senior manager of the store were advised by the claimants in her role as Shop Steward, along with the Assistant Shop Steward, that due to procedural irregularities in the original secret ballot for the respondent’s X store to engage in industrial action, the pre ’96 members of that named store would be joining the picket line in Store Y. When informed of this both managers were clearly agreeable to this and appeared delighted that they would not have to endure the operational logistics and problems of a picket at their particular store. On being informed of this position the claimant and her in-store pre ’96 Contract colleagues were then removed from all rosters for the duration of the strike. In fact the Assistant Shop Steward was advised by one of these managers that this made everything a lot easier now as it would require less staff cover.
In light of this neither of these managers should have been involved in any shape or form in the disciplinary process and in fact should also have been interviewed as witnesses to ascertain were they aware of the fact that the pre ’96 Contract staff would be attending the Y picket and if so did they advise the same that if they did do as notified they would be recorded as ‘absence without leave’. This obviously runs contrary to natural justice and clearly demonstrates the respondent’s flaws in exercising the disciplinary procedures in these cases.
Given that the claimant through her in-store representations as a Shop Steward informed the local management of her and her colleagues picketing intentions and was not advised and/or instructed to desist from the same Mandate contends that the respondent cannot assert she was AWOL. At this stage and throughout the 11 days of the dispute the respondent never once informed the claimant that she was recorded as AWOL and that they had a responsibility to explain same to their store management. This would be normal good managerial practice but obviously this was lost on the respondent.
Furthermore it is incumbent of an employer to ascertain from an employee the reasons for his/her AWOL actions. This again was not done and for good reason. The local management were fully aware of what the claimant was doing and where. The claimant had through her role as a Shop Steward and her in-store representatives actually exercised due courtesy and manners by advising their store management of her and her colleagues’ intentions, thus obviating any further impacts or hindrances on that store’s operations throughout the dispute. The least the claimant deserves is for that to be reciprocated.
4.10 As submitted prior to our member partaking in industrial action, local management in the respondent’s X store, were kept fully informed by the local Mandate representatives and members of their intention to partake in lawful industrial action as per related protections under Section 10 & 12 of the Industrial Relations Act 1990. Furthermore from a legal position Mandate submits that in view of the foregoing that the alleged breach of AWOL could not occur in law as the claimant was engaged in lawful action acting on behalf of a Trade Union in furtherance of a trade dispute, and therefore had effectively suspended her contract of employment for the length of time in which she was engaged in the action. This contention is supported in Morgan v. Fry  2 Q. B.710 where it can be summarised that arising from that case it is now the accepted doctrine that a notice to strike must be construed not as a notice to terminate the contract but as a notice to break it. The intention of those who give strike notice is, according to the present interpretation, to suspend the performance of their duties under their contracts of employment for the duration of the strike and to resume the contract after the termination of the strike. The aforementioned case was also quoted with approval by McLoughlin J. Becton, Dickinson Ltd. v. Lee.
Whilst the Respondent may seek to rely on ADJ-00011468 (which is currently under appeal and presently being heard through the Labour Courts) whereby the Adjudicator held that "In relation to the Complainant no notice of any industrial action by her was served on the Respondent therefore her actions were in breach of the Act", it is submitted that the Adjudicator erred in fact and in law and acted ultra vires to the powers which were delegated to him by the Oireachtas.
4.11 In support of the aforesaid contention it is argued that to reach such a conclusion the Adjudicator would have to interpret the 1990 Industrial Relations Acts and apply its provisions. Adjudicators have delegated their powers via both the 1969 Industrial Relations Act and the 2015 Workplace Relations Act, upon examination of these pieces of legislation it is clear that an Adjudicator does not have jurisdiction to interpret and apply such provisions. It is Mandate’s position that the Adjudication Officer’s decision held at is the more appropriate decision that embraces and recognises the Union’s arguments and defence of its members in these particular cases.
5.1 For all of the above reasons, we respectfully request the Adjudicator to declare the Claimants' case to be well founded and direct the Company to expunge the Final Written Warning from the Claimants' files.
Summary of Respondent’s Case:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I have reviewed the evidence presented at the hearings and noted the respective positions of the parties. I have considered both parties accounts of what they understood to have been agreed at the Labour Court on an orderly return to work. I have also taken account of the respective parties’ accounts of the exchanges that took place between the claimant and her manager about her intentions in the days immediately preceding the commencement of industrial action. I have also considered the contention of the employer that the dispute is now moot by virtue of the passage of time.
I find that the principles at issue in this dispute are similar to those considered by the WRC in ADJ-00012362. This case was appealed to the Labour Court (LCR21869) by the respondent and the Court found as follows:
“The Court is asked to give a decision in relation to a final written warning which was issued to the worker on the 14th.July 2017. The disciplinary procedure of the Respondent provides that a final written warning shall “remain on a staff member’s personnel file for 12 months”. On plain reading therefore, the procedure makes no provision for the warning to remain on that file for a day longer than 12 months. The Court finds therefore that the warning has no existence following the lapse of 12 months from date of issue.
The Court therefore concludes, in accordance with the disciplinary code under which it was issued, that the fact of a written warning having been issued to the Complainant has no meaning for the Complainant in terms of his employment or his relationship with his employer since the 13th July 2018. In those circumstances, the court has decided that no decision it could make on the substance of the within matter could have any effect on the worker concerned.
The Court therefore recommends that the parties should accept that the matter was resolved as an industrial relations matter on the 13th July 2018 when the impugned warning ceased to have existence.
The Court so recommends.”
Accordingly, and consistent with LCR21869, I recommend that the parties accept that the matter was resolved as an industrial relations matter on the 12th December 2018 when the impugned warning ceased to have existence.
Dated: 27th May 2019
Workplace Relations Commission Adjudication Officer: