Labour Court Database __________________________________________________________________________________ File Number: CD88206 Case Number: AD8821 Section / Act: S13(9) Parties: CADBURY IRELAND PLC - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal against Rights Commissioner's Recommendation No. CW40/88 concerning the non-appointment of a worker to a position of inspector.
Recommendation:
9. The Court finds no grounds for altering the Rights
Commissioner's Recommendation which it upholds.
The Court so decides.
Division: Mr Fitzgerald Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD88206 APPEAL DECISION NO. AD2188
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: CADBURY IRELAND PLC
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal against Rights Commissioner's Recommendation No.
CW40/88 concerning the non-appointment of a worker to a position
of inspector.
BACKGROUND:
2. The agreed method of filling vacancies as set out in the
Company's House Agreement is as follows -
"In filling any vacancy the suitability of the applicant will
be the basis of selection. While both parties to this
agreement believe that seniority is a major factor in
considering job applicants, it is accepted that jobs cannot
be given to the senior applicant due solely to his/her years
of service. Therefore, suitability will be assessed on
seniority, job experience, previous job performance, where
applicable the appropriate aptitude test".
3. On the 10th May, 1987, the Company advertised for an
inspector. The worker concerned who has seventeen years service
with the Company was the most senior person to apply for the job.
Following an aptitude test another worker with less service than
this worker was appointed to the position of inspector.
4. The Union contested the appointment on the basis that an
aptitude test should not have applied and that the job should have
gone to the senior worker. The Company contend that the worker
who was appointed as inspector was selected because he was the
most suitably qualified person having regard to the fact that he
had the highest score in the aptitude test, had been a relief
inspector for 2 years and had carried out the job satisfactorily.
The Company also contend that seniority is a factor where
applicants have equal qualifications.
5. The matter was referred to a Rights Commissioner for
investigation and recommendation. Following an investigation held
on 4th February, 1988, the Rights Commissioner issued the
following recommendation dated 5th February, 1988 -
"I recommend that the Union and the worker accept that the
Company acted correctly in filling the position of the
disputed Inspector"
The worker was referred to by name in the Recommendation.
6. The Union appealed the Recommendation to the Labour Court
under Section 13(9) of the Industrial Relations Act, 1969. The
Court heard the appeal on 7th April, 1988.
UNION'S ARGUMENTS:
7. 1. The worker concerned has seventeen years experience with
the Company. Over the years he has performed a variety of
jobs and has never had any problems with the jobs he held.
He also has had experience in the inspection job, the job he
is now contesting.
2. The worker concerned had already sat and passed an
aptitude test in the past, and therefore being the most
senior person and with a satisfactory work record he should
have got the position.
3. The relevance of the aptitude test has to be questioned
as there were occasions in the past where people worked as
inspectors without having to sit an aptitude test (details
supplied to the Court).
4. Clause 14 of the Company House Agreement states that an
aptitude test will be necessary where applicable. The Union
contend that in this case an aptitude test was not necessary
as previous holders of the position did not sit an aptitude
test. The worker concerned met all the other criteria
mentioned in the clause and he, therefore, should have been
offered the position.
COMPANY'S ARGUMENTS:
8. 1. The inspection job has long been established as one of
the small number of jobs requiring an aptitude test. The
Company was, therefore, consistent in requiring the
applicants in this case to do such a test. No objection was
raised by any of the applicants at the time of doing the
test. An aptitude test is an essential part of the
assessment of suitability for the permanent inspection job
because there is a specific aptitude required to carry out
the inspection job. The Company cannot just assume that a
worker has an aptitude to do the job. It has been
illustrated, even among the applicants for the present job,
that all applicants do not have the same aptitude for this
kind of work. One of the applicants realised on undergoing
the aptitude test that he would not be suited to the job.
2. The Union argued that an aptitude test is not required
for the relief inspection job. The purpose of the relief job
is to provide cover for absence. The Company recognises that
there has been an inconsistency in relation to the relief job
which may have given rise to problems in the present case.
The Company, for the reasons outlined, regards the aptitude
test as an essential part of the selection process for the
permanent job. In order to rectify the inconsistency, the
Company has informed the Union that it is its intention to
require an aptitude test in all cases in the future.
3. The Company recognises that seniority is an important
factor in job selection, however, as provided in the
Agreement seniority is only one factor and jobs cannot be
given on the basis of seniority alone. It is essential, in
order to find the best possible match between people and
jobs, that overall suitability is the basis of selection.
This is particularly important in jobs such as inspection.
4. The Company's decision not to appoint the most senior
applicant is totally consistent with the Agreement and with
the practice in the past. In fact, there have been a number
of cases where a more junior person was appointed to a job
because of being more suitable on an overall basis. These
cases were not contested. The principle has also been upheld
in the past on a number of occasions by a Third Party and on
the last occasion on appeal to the Labour Court. (Labour
Court Decision No. AD-41-85 refers).
DECISION:
9. The Court finds no grounds for altering the Rights
Commissioner's Recommendation which it upholds.
The Court so decides.
~
Signed on behalf of the Labour Court
Nicholas Fitzgerald
__________________________
29th April, 1988
M.D./P.W. Deputy Chairman