Labour Court Database __________________________________________________________________________________ File Number: CD88719 Case Number: AD8869 Section / Act: S13(9) Parties: CANTRELL AND COCHRANE (DUBLIN) LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION;FEDERATED WORKERS' UNION OF IRELAND |
Appeal by the Company against a Rights Commissioner's Recommendation concerning the selection method used in filling a permanent distribution vacancy.
Recommendation:
6. Having regard to the concluding paragraph of the Rights
Commissioner's recommendation, the Court is of the opinion that
the anxieties of the Company in relation to it's right to manage
is safeguarded. The Court is also of the opinion that in the
specific circumstances of the case the Rights Commissioner's
recommendation is fair and reasonable and should be upheld.
The Court so decides.
Division: Ms Owens Mr Collins Mr Walsh
Text of Document__________________________________________________________________
CD88719 APPEAL DECISION NO. AD6988
INDUSTRIAL RELATIONS ACTS, 1969
SECTION 13(9)
PARTIES: CANTRELL AND COCHRANE (DUBLIN) LIMITED
AND
IRISH TRANSPORT AND GENERAL WORKERS' UNION
FEDERATED WORKERS' UNION OF IRELAND
SUBJECT:
1. Appeal by the Company against a Rights Commissioner's
Recommendation concerning the selection method used in filling a
permanent distribution vacancy.
BACKGROUND:
2. In July, 1986, vacancies existed in the Company for eight
stand-by employees in the transport section. These vacancies were
advertised internally and eight workers from the production area
were appointed following interview, (six of the original eight are
on the panel now). A further two workers were appointed in
August, 1987. In Spring, 1988, a permanent position became
vacant. The Company proposed to select the most suitable
candidate from among a short list of candidates, in this case a
short list of the six of the original eight, who were all
appointed on the same day. The Unions proposed that since all six
had the same 'road service' in the transport section, it would be
more appropriate to select the worker with the longest overall
service in the Company. This was totally unacceptable to the
Company and in the absence of agreement the matter was referred to
a Rights Commissioner for investigation. In August, 1988 the
Rights Commissioner issued the following findings and
recommendation.
3. " FINDINGS
Having investigated the matter and having given full and
careful consideration to the points made by both parties I
have come to the following conclusions; (1) I note that
the Trade Unions have asserted with great emphasis that in
requesting the Company to take the line approach it is
proposing no implications whatsoever are intended which
would restrict management's right to manage.
(2) I also note the statement by the Company to the effect
that if it was only the most senior (Company wise) person
among the stand-by employees who applied for the position
then the Company would have no reluctance to have him
appointed. (3) I also note that the situation is quite
unique insofar as all of the five stand-by employees were
appointed to stand-by positions on the same date.
RECOMMENDATION
In the light of the above and in the interests of equity I
recommend that the person with longest Company service
among the stand-by employees should be offered the position
as permanent helper.
I would like to reiterate that in making this
recommendation I am relying on the good faith of the Trade
Unions in fulfilling the undertakings given that a
recommendation in their favour would in no way inhibit the
right of management to manage its business. "
The Company rejected the Rights Commissioner's Recommendation and
on 20th September, 1988, appealed it to the Labour Court under
Section 13(9) of the Industrial Relations Act, 1969. The Court
heard the appeal on 24th October, 1988.
COMPANY'S ARGUMENTS:
4. 1. In his findings the Rights Commissioner noted that the
Unions are proposing "no implications" to restrict the right
of management to manage. The Company believes that it has
severe implications for the right to manage. It is
managements right to select the most suitable individual for a
job. Furthermore, the assertion that the Company would have
"no reluctance" to appoint any of the individual applicants
avoids the issue of right to selection. There is every reason
to believe that each of the stand-bys involved would apply for
the job.
2. Recommending that the worker with the longest service be
selected flies in the face of all principles of selection and
is a recipe for mediocrity. It elevates overall length of
service in the Company to a higher level than competence and
suitability.
3. To be able to compete successfully in the market the
Company must be able to choose the most suitable worker for
each specific vacancy which might arise. Long service in the
Company is already rewarded by increased benefits such as
holidays and service pay. The workers concerned must be
allowed the opportunity to apply for the vacancy.
UNIONS' ARGUMENTS:
5. 1. The Company's right to select workers for specific jobs is
not threatened by the Rights Commissioner's recommendation.
In fact, the Company has had it upheld by the process of
selection for stand-bys i.e. advertising, interview and
selection.
2. The Company already accept the principle of seniority
within the job on the basis that, if unsuitable, the worker
would not be retained as a stand-by. All six stand-bys have
successfully completed a probationary period and have been
retained as stand-bys from the date of their appointment.
3. The Company's argument that this decision establishes a
precedent has been answered by the Rights Commissioner's
findings which emphasise the extraordinary and particular
circumstances of this situation.
4. The Unions believe that the Company's opposition to their
proposal is based on a perceived rather than a real threat to
the Company's right to hire and fire. In fact, the Company
has already stated that if only the most senior (company-wide)
person were to apply for the position, then, the Company would
have no reluctance in appointing him.
DECISION:
6. Having regard to the concluding paragraph of the Rights
Commissioner's recommendation, the Court is of the opinion that
the anxieties of the Company in relation to it's right to manage
is safeguarded. The Court is also of the opinion that in the
specific circumstances of the case the Rights Commissioner's
recommendation is fair and reasonable and should be upheld.
The Court so decides.
~
Signed on behalf of the Labour Court,
Evelyn Owens
___________________
25th November, 1988.
B. O'N. / M. F. Deputy Chairman.