Labour Court Database __________________________________________________________________________________ File Number: CD87777 Case Number: AD8795 Section / Act: S13(9) Parties: - and - A WORKER;THE IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the worker against Rights Commissioner's Recommendation CW 67/87 concerning the filling of a vacancy.
Recommendation:
6. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
recommendation which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Shiel Mr O'Murchu
Text of Document__________________________________________________________________
CD87777 APPEAL DECISION NO. AD9587
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: GHEEL TRAINING GROUP LIMITED (G.T.G.)
and
A WORKER
(Represented by the Irish Transport and General Workers' Union)
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
Recommendation CW 67/87 concerning the filling of a vacancy.
BACKGROUND:
2. Gheel Training Group Limited provides both day and residential
care for autistic young adults. It has two day centres and two
residential hostels in the Dublin area.
3. The worker concerned graduated from the Department of
Psychology in University College Dublin in October, 1982, and has
been employed as a houseparent by G.T.G. since then. In October,
1986, he applied for, and was granted, leave of absence for three
months in order to visit Australia. While the appellant was on
leave of absence a vacancy arose for the position of Child Care
Worker/Workshop Instructor. Following an internal advertisement
and subsequent interview, the position was filled. On his return
to work the appellant sought to have this decision overturned as
he claimed that Management had made no effort to contact him
despite being aware of his desire for a permanent appointment as a
workshop instructor (he had previously spent eight months in this
job in 1986, providing cover for someone on sick leave).
Furthermore, he claimed that the proper procedure for filling the
post had not been adhered to in that the post had not been
advertised externally. These allegations were rejected by
Management. The worker referred the matter to a Rights
Commissioner for investigation and recommendation. The Rights
Commissioner, having investigated the dispute issued the following
recommendation on the 24th September, 1987 -
"I recommend that he accept that the vacancy was properly
filled and that the Group notes his "application" in regard
to any Day Centre vacancies which arise in the future and
will activate it when such vacancies arise".
The worker rejected this recommendation and on the 5th October,
1987, appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing was held on the
12th November, 1987.
WORKER'S ARGUMENTS:
4. 1. During 1986, the appellant worked for eight months as a
workshop instructor, replacing another worker who was on sick
leave. He considers that he made a very valuable
contribution and at no time was his ability or skill disputed
nor was there any dissatisfaction with his service.
2. He was led to believe that he would be given the
opportunity to apply for any vacancy which arose. It is the
established policy of all health agencies that when an advert
is not published in the public press, the employer contacts
those staff who are on annual leave, sick leave, maternity
leave and leave of absence. In this case, no attempt was
made to contact the worker.
3. It is clear that there have been irregularities in the
filling of this appointment. The position was not advertised
externally as provided for in both the Gheel Training Group
Policy Document, 1983, and the Gheel Training Group Procedure
Manual (details supplied to the Court). The normal procedure
for filling a vacancy in a publicly funded organisation is a
public advertisement and competition by interview followed by
appointment or placement on a panel. It is common practice
in most good employments that posts are the subject of open
competition and GTG should be no exception. The appellant
was on file requesting a transfer and it is unacceptable and
deeply unjust that his training, education and experience
should be ignored in this manner. Furthermore, in Circular
No. 10/71, concerning "Appointments and Conditions of Service
of Officers and Services under Health Boards", the policy of
open competition is further endorsed by a directive from the
Minister for Health (details supplied to the Court).
MANAGEMENT'S ARGUMENTS:
5. 1. A permanent vacancy arose in mid-January, 1987, and
following discussions with the Eastern Health Board, it was
decided to invite applications from existing staff members.
This was done by way of an internal advertisement in each of
the Units on the 13th February, 1987, (details supplied to
the Court). A properly constituted interview board with
representatives from the Employer, Eastern Health Board and
the Irish Society for Autistic Children was established to
assess the applicants. Interviews took place on the 10th
March and the vacant position was filled.
2. There is no obligation on the Employer to circularise
information to employees on unpaid leave. It can be seen
from the appellant's application for special leave that he
intended to be in Australia for three months and he left no
forwarding address.
3. The Employer contends that the method of appointment was
in line with standard and fair procedures and undertakes to
note the appellant's application in regard to Day Centre
posts which may arise in the future but cannot and will not
give a guarantee to him for the next day centre job.
DECISION:
6. The Court, having considered the submissions made by the
parties, finds no grounds for altering the Rights Commissioner's
recommendation which it upholds.
The Court so decides.
~
Signed on behalf of the Labour Court
11th December, 1987 Nicholas Fitzgerald
D.H./P.W. Deputy Chairman