Labour Court Database __________________________________________________________________________________ File Number: CD88385 Case Number: AD8836 Section / Act: S13(9) Parties: COUNTY DUBLIN VOCATIONAL EDUCATION COMMITTEE - and - A WORKER |
Appeal by a worker against Rights Commissioner's recommendation No. CW35/88 concerning alleged unfair dismissal.
Recommendation:
6. The Court, having carefully 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 McHenry Mr O'Murchu
Text of Document__________________________________________________________________
CD88385 APPEAL DECISION NO.AD3688
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: COUNTY DUBLIN VOCATIONAL EDUCATION COMMITTEE
AND
A WORKER
SUBJECT:
1. Appeal by a worker against Rights Commissioner's
recommendation No. CW35/88 concerning alleged unfair dismissal.
BACKGROUND:
2. In August, 1987, the VEC obtained Department of Education
sanction for the appointment of a permanent wholetime caretaker in
Fingal Community College. Pending the competition for the filling
of this permanent post the worker concerned was employed as a
temporary caretaker in the College on 14th September, 1988. An
advertisement for the permanent post was placed in the public
press on 18th September, 1987, for which the worker applied and he
was interviewed by the Committee on 12th November, 1987. The
Committee at a meeting held on 17th December, 1987, selected a
candidate for the post. The worker was placed second on the order
of merit list. On 13th January, 1988, the worker was given
written notice of termination of employment and finished work on
27th January, 1988. The candidate selected for the post took up
duty on Monday 25th January, 1988. The worker subsequently
referred a claim for alleged unfair dismissal to a Rights
Commissioner for investigation and recommendation. A Rights
Commissioner investigated the dispute on 30th March, 1988, and
issued the following recommendation -
"I recommend that the worker accepts that the position was
properly filled and that he was an unsuccessful candidate and
that the College considers favourably the worker for any
temporary work which may arise for positions which he could
capably fill".
(The worker was mentioned by name in the Recommendation).
3. On 19th May, 1988, the worker appealed the Recommendation to
the Labour Court under Section 13(9) of the Industrial Relations
Act, 1969. The Court heard the appeal on 16th June, 1988.
WORKER'S ARGUMENTS:
4. 1. The worker's qualifications were far superior to those of
any of the other candidates called for interview. These
included a Leaving Certificate, Child Care Diploma, ten years
working with juvenile delinquents, six years in the Irish
Army with the rank of Sergeant, ten years with the New York
Telephone Company, two years building maintenance and two
years gardening experience. The worker had also proved
himself in the post to the Principal of the College and to
the V.E.C. (details supplied to the Court), and had the full
support of all the teachers and had a good relationship with
the students. In the circumstances there were no grounds for
dismissal except that he was supposedly unsuccessful at the
interview for the full-time post.
2. While it would appear that all procedures regarding
appointments and open competition were followed, the worker
would disagree with this. In short listing candidates for
the post the Committee decided to call for interview
applicants from the Swords area between the ages of 25 and 50
years. However, the worker was not short listed for a
similar post in another school in 1986 as he was considered
too old at 46 years of age. Candidates selected for
interview were asked to forward copies of two recent
references. However the successful candidate did not comply
with this request but presented his references on the date of
the interview.
3. The Committee did not comply with the conditions of
section 14 of the Unfair Dismissals Act, 1977. According to
Article 45 of the Constitution and Article 119 of the Treaty
of Rome a person has the right to work. Because of the
discrepancies in this situation, the procedures were not
scrupulously followed by the Committee and as the worker was
placed second by the interview panel, he would have obtained
this permanent post. In the circumstances he was unfairly
dismissed.
4. The worker was also of the view that the appointment was
made for political patronage as the person who was appointed
was less qualified.
COMMITTEE'S ARGUMENTS:
5. 1. The Principal of the College recruited the worker through
Manpower (FAS) in Swords and made it explicitly clear from
the beginning both to Manpower (FAS) and the worker that the
post was a temporary one pending the recruitment of a
permanent caretaker in the normal manner.
2. The Committee scrupulously followed all of its procedures
regarding appointments and open competition. The worker was
placed second on the order of merit list and would have been
offered the post if the number one candidate had declined the
post. The Committee is of the opinion that it acted with
complete fairness at all times, supplied full information and
honoured its legal obligations to the worker.
3. This matter raises serious issues for the Committee which
employs approximately 1400 people of whom about 850 are
part-time or temporary and includes teachers, caretakers,
attendants and clerical staff. If this worker's claim
succeeds it will have serious implications and consequences
for the future filling of part-time or temporary posts.
DECISION:
6. The Court, having carefully considered the submissions made by
the parties, finds no grounds for altering the Rights
Commissioner's recommendation which it upholds.
The Court so decides.
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Signed on behalf of the Labour Court
4th July, 1988 Nicholas Fitzgerald
U.M./P.W. Deputy Chairman